Alaska Credit Bureau of Juneau v. Fenner, 5925-A.

• Decision Date: 14 October 1948
• Docket Number: No. 5925-A.,5925-A.
• Citation: 80 F. Supp. 7
• Parties: ALASKA CREDIT BUREAU OF JUNEAU v. FENNER.
• Court: U.S. District Court — District of Alaska

80 F. Supp. 7

ALASKA CREDIT BUREAU OF JUNEAU v. FENNER.

No. 5925-A.

United States District Court, Alaska First Division, Juneau.

October 14, 1948.

William L. Paul, Jr., of Juneau, Alaska, for plaintiff.

John C. Hughes, of Kodiak, Alaska, and Howard D. Stabler, of Juneau, Alaska, for defendant.

FOLTA, District Judge.

The question raised by the demurrer to the complaint is whether this action, commenced July 7, 1948, is barred by the local statute of limitations. The complaint sets forth ten causes of action which, it is alleged, accrued in the State of Washington at various times between October 22, 1938, and February 20, 1948. It is further alleged that defendant "subsequent to July 11, 1942, left the State of Washington and came to Alaska and he has ever since been beyond the jurisdiction of the courts of the State of Washington and within the jurisdiction of the courts of the Territory of Alaska," and that the right of action in each instance has been assigned to the plaintiff.

Decision of the question presented turns not upon whether the local statute of limitations has run for the full period, which does not appear upon the face of the complaint, but upon whether an action accruing in another jurisdiction between non-residents of Alaska may nevertheless be maintained against the defendant after he enters or establishes a residence in Alaska before the action is barred in the jurisdiction of his former residence where it accrued and before it is barred by the statute of limitations here.

The two cases cited by counsel are of little value in determining this question. It is agreed that the action is subject to the limitation of six years, prescribed by Sec, 3356, C.L.A. 1933, but a determination of the question involves a consideration of Secs. 3365 and 3374, C.L.A. 1933, which are as follows:

Sec. 3365. "If, when the cause of action shall accrue against any person who shall be out of the Territory or concealed therein, such action may be commenced within the terms herein respectively limited, after the return of such person into the Territory or the time of his concealment; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this Territory, or conceal himself, the time of his absence on concealment shall not be deemed or taken as any part of the time limited for the commencement of such action."

Sec. 3374. "When the cause of action has arisen in any state, territory, or country between nonresidents of this Territory, and by the laws of the state, territory, or country where the cause of action arose an action can not be maintained thereon by reason of the lapse of time, no action shall be maintained thereon in this Territory."

Sec. 3365, in common with like statutes in practically every state, is based on Chapter 16, Sec. 19, of the Statute of Anne, which declares, in substance, that if any person against whom there should be any cause of action, was at the time such action accrued beyond the seas, the action might be brought against him on his return within the time limited for bringing such action. 54 C.J.S., Limitations of Actions, § 208, page 230; Burrows v. French, 34 S.C. 165, 13 S.E. 355, 27 Am.St.Rep. 811. While the statutes of the various states differ somewhat in phraseology, particularly in that for the words "beyond the seas" words equivalent in meaning to "out of the state" have been substituted, they have, by the overwhelming weight of authority and better reasoning, been construed to apply not only to residents but also to those who had never resided in the jurisdiction of the forum. This has been the construction given the Statute of Anne in England ever since its enactment. In a few jurisdictions, however, the Statute of Anne has been expressly modified so as to limit its application to residents, but in the absence of express language to that effect, it is uniformly held that the statute applies to residents and non-residents alike, 54 C.J.S., Limitations of Actions, §§ 210, subsec. b, 212, c (2) pages 231, 236, 237; 34 Am.Jur. 181-2; Sec. 224, and the authorities there cited notwithstanding the obvious implication arising from the use of the word "return" in the statute. Such a construction merely gives effect to the rule that where statutes, especially those of the character of the statute of frauds and the statute of limitations, have been adopted from England, the known and settled construction of such statutes by the courts of that country is considered as silently incorporated into the law of the adopting jurisdiction. Pennock v. Dialogue, 2 Pet. 1, 18, 7 L.Ed. 327; Cathcart v. Robinson, 5 Pet. 264, 280, 8 L.Ed. 120; McNally v. Hill, 293 U.S. 131, 136, 55 S.Ct. 24, 79 L.Ed. 238; Coad v. Cowhick, 9 Wyo. 316, 63 P. 584, 585, 586, 87 Am.St.Rep. 953; Kirkpatrick v. Gibson, Fed.Cas.No. 7,848. And mere differences in phraseology employed by the adopting jurisdiction do not warrant a different construction. McDonald v. Hovey, 110 U.S. 619, 621-630, 4 S.Ct. 142, 28 L.Ed. 269; Pennock v. Dialogue, supra, 2 Pet. at page 20, 7 L.Ed. 327; Burnes v. Crane, 1 Utah 179; Angell on Limitations, Sec. 21. Of the many decisions which support the rule that statutes of limitation based on the Statute of Anne, similar to that here involved, are not to be confined to residents, the leading state case appears to be Ruggles v. Keeler, 1808, 3 Johns, N.Y., 263, 3 Am.Dec. 482, in which Chief Justice Kent, speaking for the Court, said:

"The first question which naturally arises is, whether the act of limitations of this state can be interposed in bar to the matters contained in the set-off.

"The act requires that all actions founded upon any contract, without specialty, shall be brought within six years next after the cause of action accrued. These words would, undoubtedly, unless controlled by the exception in the statute, apply even to the case of foreigners, and to causes of action arising abroad. The statute of 21 Jac. 1, was so understood by Lord Ch. Cowper, in the case of Duplein v. De Roven, 2 Vern. 540, which arose shortly before the statute of Anne, and he observed that `it was plausible and reasonable, that the statute of limitations should not take place, nor the six years be running, until the parties came within the cognizance of the laws of England; but that must be left to the legislature.' But a proviso in the statute of Anne, and which we have adopted in our act of limitations, saves the operation of the statute, if the party shall be `out of the state' at the time the cause of action arises against him, and the statute does not begin to run until `after the return' of the defendant. Whether the defendant be a resident of this state, and only absent for a time, or whether he resides altogether out of the state, is immaterial. He is equally within the proviso. If the cause of action arose out of the state, it is sufficient to save the statute from running in favor of the party to be charged, until he comes within our jurisdiction. This has been the uniform construction of the English statutes, which also speak of the return from beyond seas of the party so absent. The word return has never been construed to confine the proviso to Englishmen who went abroad occasionally. The exception has been considered as general, and extending equally to foreigners who reside always abroad. This was evidently the opinion of Lord Talbot in the case of Duplein v. De Roven. In Strithorst v. Greame, 3 Wils. 145; 2 Black.Rep. 723, S.C., the point was so ruled by the court of C.B. in England.

"The party to be charged by the set-off, not having been six years within this state since the cause of action arose, our statute of limitations could not, therefore, be replied to the plea."

To the same effect are: Murray's Lessee v. Baker, 3 Wheat. 541, 544, 4 L.Ed. 454; Shelby v. Guy, 11 Wheat. 361, 365, 6 L.Ed. 495. Typical cases construing such clauses in the statutes of the various states which follow the English rule are: West v. Theis, 15 Idaho 167, 96 P. 932, 17 L.R.A., N.S., 472, 128 Am.St.Rep. 58; Palmer v. Shaw, 16 Cal. 93; McKee v. Dodd, 152 Cal. 637, 93 P. 854, 14 L.R.A., N.S., 780, 125 Am.St. Rep. 82; King v. Lane, 7 Mo. 241, 37 Am. Dec. 187; Burrows v. French, 34 S.C. 165, 13 S.E. 355, 27 Am.St.Rep. 811; Cvecich v. Giardino, 37 Cal.App.2d 394, 99 P.2d 573; Annotation to Jamieson v. Potts, 25 L.R.A., N.S., 24; Stanley v. Stanley, 47 Ohio St. 225, 24 N.E. 493, 8 L.R.A. 333, 21 Am.St. Rep. 805; Hartley v. Crawford, 12 Neb. 471, 11 N.W. 729; Bean v. Rumrill, 69 Okl. 300, 172 P. 452, 458; John v. John, 307 Mass. 514, 30 N.E.2d 542; Burnes v. Crane, 1 Utah 179. For a further discussion of the history of the Statute of Anne and a review of the authorities construing the clauses excepting its operation in cases of absence or non-residence see Mason v. Union Mills Paper Mfg. Co., 1895, 81 Md. 446, 32 A. 311, 29 L.R.A. 273, 48 Am.St.Rep. 524.

Sec. 3365 was one of the sections of the Civil Code enacted by Congress for Alaska June 6, 1900, 31 Stat. 321. It was apparently adopted from Oregon, Hills Annotated Laws, Sec. 16. That section, which is identical with ours, came before the Supreme Court of Oregon in McCormick v. Blanchard, 1879, 7 Or. 232. Both parties were residents of Illinois when the cause of action accrued, but defendant became a resident of Oregon about three years before he was sued there. When the action was commenced in Oregon more than six years had elapsed since it had accrued in Illinois. The Court held that Sec. 16 (our Sec. 3365) began to run from the time the action accrued rather than from the time the debtor arrived in Oregon. This doctrine that the exceptions in the statute did not apply to non-residents was followed in Crane v. Jones, 1893, 24 Or. 419, 33 P. 869, and in Van Santvoord v. Roethler, 1899, 35 Or. 250, 57 P. 628, 76 Am.St.Rep. 472. But the doctrine was practically repudiated in Jamieson v. Potts, 55 Or. 292, 105 P....